In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00466-CV
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IN THE INTEREST OF J.L.C.
_______________________________________________________ ______________
On Appeal from the 317th District Court
Jefferson County, Texas
Trial Cause No. C-216,712-A
________________________________________________________ _____________
MEMORANDUM OPINION
M.L.C. Jr. (Father) appeals from the judgment terminating his parental rights
to a minor, J.L.C., in a suit filed by the appellee, K.R.C. (Mother). 1 In five issues,
Father contends the trial court erred by failing to sua sponte appoint an attorney to
represent Father in the private termination proceedings in the trial court, and Father
challenges the legal and factual sufficiency of the evidence supporting the trial
court’s findings as to each of the three grounds for involuntary termination found
1
For purposes of confidentiality, we refer to the parties by their initials and
their relationships to the child. See Tex. R. App. P. 9.8.
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by the trial court, as well as the trial court’s finding that termination is in the best
interest of the child. We affirm the trial court’s judgment.
Legal and Factual Sufficiency
Issues one through four challenge the legal and factual sufficiency of the
evidence supporting the trial court’s termination findings. To terminate a parent-
child relationship, it must be shown by clear and convincing evidence that the
parent has committed at least one of the predicate acts listed in section 161.001(1)
of the Texas Family Code and that termination is in the best interest of the child.
Tex. Fam. Code Ann. § 161.001(1), (2) (West 2014). Clear and convincing
evidence is defined as “the measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established.” Id. § 101.007.
In reviewing the legal sufficiency of the evidence in a parental rights
termination case, the reviewing court “should look at all the evidence in the light
most favorable to the finding to determine whether a reasonable trier of fact could
have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so, and we disregard
all evidence that a reasonable factfinder could have disbelieved or found to have
been incredible. Id. However, we are not required to disregard all evidence that
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does not support the finding. Id. If no reasonable factfinder could form a firm
belief or conviction that the matter that must be proven is true, then we must
conclude that the evidence is legally insufficient. Id.
In reviewing the factual sufficiency in a parental termination case, the
reviewing court “must give due consideration to evidence that the factfinder could
reasonably have found to be clear and convincing.” Id. (citing In re C.H., 89
S.W.3d 17, 25 (Tex. 2002)). The question we must answer is “‘whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth of the . . . allegations.’” Id. (quoting C.H., 89 S.W.3d at 25). We
consider whether a reasonable factfinder could not have resolved the disputed
evidence in favor of its finding. Id. “If, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the finding
is so significant that a factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id. In our review, we must
be careful to “provide due deference to the decisions of the factfinder, who, having
full opportunity to observe [the] witness testimony first-hand, is the sole arbiter
when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d
498, 503 (Tex. 2014).
“Only one predicate finding under section 161.001(1) is necessary to support
a judgment of termination when there is also a finding that termination is in the
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child’s best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The trial court
made findings on three of the grounds listed in section 161.001(1) of the Texas
Family Code, finding by clear and convincing evidence that Father: “voluntarily
left the child alone or in the possession of another without providing adequate
support of the child and remained away for a period of at least six months;”
“engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child;” and
“knowingly engaged in criminal conduct that has resulted in the parent’s[]
conviction of an offense[] and confinement or imprisonment and inability to care
for the child for not less than two years from the date of filing the petition[.]” See
Tex. Fam. Code Ann. § 161.001(1) (C), (E), (Q). 2
Documents admitted into evidence during the trial establish that Father was
convicted and received concurrent five-year sentences for possession of child
pornography and possession of a controlled substance. Father testified that he had
been incarcerated for two years at the time of the trial. From the documents and
from Father’s statement that he had served only two years of his concurrent five-
2
In her original petition, Mother denied Father’s previous acknowledgement
of paternity. See generally Tex. Fam. Code. Ann. § 160.308 (West 2014). She
testified that Father is not the child’s biological father. Father testified that he is not
J.L.C.’s biological father, but he was adjudicated to be J.L.C.’s father in 2012. The
trial court’s judgment includes a finding that Father is not the biological father of
J.L.C. See generally id. § 160.309 (procedure for challenging the acknowledgment
or denial of paternity). That finding is not challenged in this appeal.
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year sentences, the trial court could reasonably infer that three years remained to
be served on Father’s sentences when Mother filed the petition.
Father argues that the evidence is insufficient because he might receive
parole. In his trial testimony, Father stated that he was eligible for parole, but it had
been set off for a year. Father indicated that he was under parole review at the time
of the trial but conceded that he might not receive parole in his next review. “Mere
introduction of parole-related evidence . . . does not prevent a factfinder from
forming a firm conviction or belief that the parent will remain incarcerated for at
least two years.” In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006). The trial court
could conclude that Father’s possible release on parole was mere conjecture. See
id.
With regard to whether as a consequence of his incarceration Father would
be unable to care for the child, “[c]ases discussing the incarcerated parent’s
provision of support through other people contemplate that the support will come
from the incarcerated parent’s family or someone who has agreed to assume the
incarcerated parent’s obligation to care for the child.” Id. at 110. Mother had
custody of J.L.C. and her efforts to care for the child were not provided on behalf
of Father, particularly where she was seeking to terminate his rights. See id.
Mother testified that Father did not contribute at all to the support of J.L.C. in the
last two years. Father argues that the record shows he has made arrangements with
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his parents to help support the child during Father’s incarceration. In response to a
question asking whether he had contributed financially during his incarceration,
Father stated that his family “gave money on top of money on top of money.” The
trial court could reject this testimony as too ambiguous to establish that Father’s
parents had been meeting his support obligations on his behalf. Father’s parents
testified during the trial, but neither witness stated that they would financially
support J.L.C. or provide J.L.C.’s care during Father’s remaining incarceration.
The Father’s proposed caregivers, his parents, neither testified that they would act
as caregivers during their son’s incarceration nor stated that they were willing and
possess the resources to provide care for the child. On this record, the factfinder
could reasonably conclude that the Father would be unable to care for the child.
See In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied).
Viewing the evidence in the light most favorable to the trial court’s finding
under subsection 161.001(1)(Q), we conclude that the trial court reasonably could
have formed a firm belief or conviction that Father knowingly engaged in criminal
conduct that has resulted in his conviction and imprisonment and an inability to
care for J.L.C. for not less than two years from the date of the filing of the petition.
See J.F.C., 96 S.W.3d at 266. Based on our review of the entire record, we further
conclude that the disputed evidence could have been reconciled in favor of the trial
court’s finding or was not so significant that the trial court could not reasonably
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have formed a firm belief or conviction that as a result of Father’s criminal
conduct, Father would be incarcerated and unable to care for the child while he
remained incarcerated and that he would remain incarcerated for two years from
the date of the filing of the petition. Id. Accordingly, we hold that the evidence was
legally and factually sufficient to support the subsection 161.001(1)(Q) finding.
We overrule issue three.
In light of our conclusions that factually and legally sufficient evidence
support termination under subsection 161.001(1)(Q), we need not address Father’s
legal and factual sufficiency arguments raised in issues one and two, that relate to
alternative termination grounds. A.V., 113 S.W.3d at 362.
Best Interest of the Child
In issue four, Father challenges the legal and factual sufficiency of the
evidence supporting the trial court’s finding that termination is in the best interest
of the child. See generally Tex. Fam. Code Ann. § 161.001(2). Regarding the
child’s best interest, we consider a non-exhaustive list of factors: (1) desires of the
child; (2) emotional and physical needs of the child now and in the future; (3)
emotional and physical danger to the child now and in the future; (4) parental
abilities of the individual seeking custody; (5) programs available to assist this
individual to promote the best interest of the child; (6) plans for the child by the
individual or by the agency seeking custody; (7) stability of the home or proposed
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placement; (8) acts or omissions of the parent which may indicate that the existing
parent-child relationship is not proper; and (9) any excuse for the acts or omissions
of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). In reviewing
the trial court’s decision to terminate a parent’s relationship with a child, we
consider that “there is a strong presumption that the best interest of a child is
served by keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). The party seeking termination need not prove that each Holley factor favors
termination. C.H., 89 S.W.3d at 27. A trial court’s best interest finding “is not
dependent upon, or equivalent to, a finding that the child has been harmed by
abuse or neglect or is in danger of such harm[,]” but rather “‘best interest’ is a term
of art encompassing a much broader, facts-and-circumstances based evaluation that
is accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
Father argues his incarceration does not automatically establish that
termination is in the best interest of the child. A parent’s imprisonment is not
automatic grounds for termination. In re S.R.L., 243 S.W.3d 232, 236 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). It is, however, a factor to be considered in
determining the child’s best interest, in light of the expected length of the
imprisonment. In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.]
2002, pet. denied). In his trial testimony, Father suggested that he was in the parole
review process and might be granted parole, but Father had previously violated the
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terms of a supervised release, and he was incarcerated for a serious sexual offense,
so it would be reasonable for the trial court to consider that Father might be made
to serve his entire sentence in prison.
Mother and Father provided conflicting testimony regarding Father’s
lifestyle when he is not incarcerated. According to Mother, Father was an abusive
alcoholic who has never tried to quit drinking. Mother claimed Father became
violent with her on more than one occasion, and that violence occurred in J.L.C.’s
presence. She testified that Father drove while intoxicated with J.L.C. in the
vehicle. Father denied driving while intoxicated when J.L.C. was in the vehicle
with him. Father testified that he committed the drug offense before J.L.C.’s birth,
and claimed that he never failed a drug test while he was on community
supervision. According to Father, the only offenses he committed after J.L.C.’s
birth were the child pornography charge and one of his two offenses for driving
while intoxicated.
The record contains conflicting testimony with regard to whether Father
provided a positive or a negative effect on the family. Mother, a self-described
drug addict, claimed that Father introduced her to drugs. Mother suggested that
over the course of their twelve-year relationship, Father and his friends contributed
to her relapses by giving her drugs each time she had reached a point of sobriety.
In contrast to Mother’s testimony, Father claimed that he raised J.L.C. by himself
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for a year and a half while Mother was incarcerated and using drugs. Father’s
parents offered testimony that to some extent controverted Mother’s testimony
about Father’s lifestyle. His father stated that he knew Father had two convictions
for driving while intoxicated, and he was aware that Father was serving a sentence
for possession of child pornography, but he never knew Father to drive drunk with
J.L.C. in the car, and he never knew Father to be a drug dealer. His mother had
never seen Father belligerently drunk around the child and had never seen Father
abuse a child. She denied that Father ever had a drinking problem or a drug
problem, or that he sold drugs. She stated that her son has “come back to the
Lord.” Neither witness described the extent of their contact with Father and J.L.C.
The trial court could disbelieve them, or could determine they were credible but
failed to demonstrate that they had sufficient contact with the family to accurately
assess how it functioned. See A.B., 437 S.W.3d at 503.
As the factfinder in this case, the trial court is the sole judge of the
credibility of the witnesses and may choose to believe one witness over another.
See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). The record contains credible
evidence that Father engaged in a criminal lifestyle that adversely affected Mother
and J.L.C. As an appellate court, we must defer to the factfinder’s decisions
concerning credibility. A.B., 437 S.W.3d at 503. Viewing the evidence in the light
most favorable to the trial court’s finding under subsection 161.001(2), we
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conclude that the trial court reasonably could have formed a firm belief or
conviction that termination of the parent-child relationship is in J.L.C.’s best
interest. See J.F.C., 96 S.W.3d at 266. Viewing all of the evidence, the disputed
evidence is not so significant that a reasonable factfinder could not have resolved
that disputed evidence in favor of its finding. See id. In light of the entire record,
the trial court reasonably could form a firm belief or conviction that termination is
in J.L.C.’s best interest. See id. We conclude the evidence is legally and factually
sufficient and we overrule issue four.
Right to Appointed Counsel
In issue five, Father contends, “The [t]rial court erred in not appointing an
attorney as required under section 107.013 of the Texas Family Code when
termination of parental rights are involved.” See generally Tex. Fam. Code Ann. §
107.013 (West 2014). 3 Section 107.013 of the Texas Family Code applies only to
suits filed by a governmental entity. Id. § 107.013(a). An indigent parent does not
have a statutory right to appointed counsel in a private termination case. In re
3
Father did not request counsel until he filed a motion for appointment of
counsel for the appeal. See Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C.,
452 U.S. 18, 31-32 (1981) (“We . . . leave the decision whether due process calls
for the appointment of counsel for indigent parents in termination proceedings to
be answered in the first instance by the trial court, subject, of course, to appellate
review.”). The trial court appointed counsel to represent Father in this appeal. The
trial court appointed an attorney ad litem for the child prior to trial. See Tex. Fam.
Code Ann. § 107.021 (West 2014).
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S.G.E., No. 09-11-00191-CV, 2012 WL 1795132, at *1 (Tex. App.—Beaumont
May 17, 2012, pet. denied) (mem. op. on reh’g), cert. denied by A.S.E. v. A.S., 134
S. Ct. 689 (2013); In re I.E.Z., No. 09-09-00499-CV, 2010 WL 3261145, at *1 n.1
(Tex. App.—Beaumont Aug. 19, 2010, no pet.) (mem. op.); In re J.C., 250 S.W.3d
486, 487 (Tex. App.—Fort Worth 2008, pet. denied). We overrule issue five.
Conclusion
Having overruled all five of the appellant’s issues, and finding no reversible
error by the trial court, we affirm the trial court’s judgment terminating the
appellant’s parental rights to J.L.C.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on January 26, 2015
Opinion Delivered February 12, 2015
Before McKeithen, C.J., Kreger and Horton, JJ.
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